Accommodating Religion on the Job Few Rules, Lots of Common Sense

Religion is one of those topics that you don’t discuss with people you don’t know very well. This is done for a good reason: It’s personal, wildly divergent among people, and can be a volatile topic. So how do you approach this intimate, prickly subject with the woman who needs Christmas off, the man who must wear a yarmulke, or those folks who always seem to be recruiting new blood for their churches? Very carefully is the short answer, as religious holidays, philosophies and clothing are all protected to some extent under Title VII. Tim Howlett, a member of Dickinson Wright’s employment-relations practice group in Detroit, offers some insight.

Can you provide a frame of reference on what employers can and can’t regulate in terms of religion?A good frame of reference for employers is the Americans with Disabilities Act (ADA) [because] what happens in terms of religion in the workplace is accommodation. It’s a balancing act, and it’s dependent on the individual situation. It’s important for employers to get some legal advice on these issues because, a lot of times, there’s just not an iron-clad rule. A lot of it is common sense.

What about a company that doesn’t want employees to wear long beards or veils because of safety issues?There have been such cases. Suppose somebody’s religion requires him to wear a beard, and he has a job in which he has to wear a safety mask. How can you accommodate that? You can’t just do away with the rule that somebody must wear a safety mask. That doesn’t make sense, and you’d run into problems with OSHA. The same rules apply to somebody wearing a turban or veil. If there are risks [or] if the person works around equipment, the employer doesn’t to have to sacrifice safety to accommodate someone’s religion. What you can do is try to assign the employee to a different job.

How would you handle this topic in a hiring situation?What if a person whose religion requires him or her to wear a beard or veil applies for jobs in which wearing those would be unsafe?Say, for example, you’re hiring for a specific position, and employees would be working in the chemical area. You know that your employees are going to have to wear masks in this case.

If someone comes in with a beard, an employer could say, "Look, this is the only job opening we have right now, and you can’t have a beard because you can’t get a tight fit with a mask. Are you willing to shave?" If the person says no, then he doesn’t get hired.

That’s all an employer needs to do in that area?Well, an employer needs to exercise some common sense and not say, "Does your religion make you wear that beard?" The issue isn’t the religion or the reason for the beard—the issue is the beard.

What if the objection is not so much about safety, but more about uniformity in employee appearance?You get into real gray areas there. If you have someone in a sales position, and the person’s religion requires him to have a beard, wear a turban or whatever, [it wouldn’t be wise for the employer to say], "Gee, I’m not sure how my customers are going to react to this—you can’t have this beard."

[When religious items or apparel don’t interfere with safety, employers should tend toward accommodation. For instance, the EEOC has also stated that employees may keep religious books or office decorations.]

What about discussing religion at the workplace?Where’s the line between being friendly and harassing someone?In terms of somebody proselytizing, freedom of speech is going to give the person that right. An employer can’t just ban employees from inviting people to attend church services or join their churches. But if an employee says, "Okay, I listened to you, and that’s enough. I don’t want to be bothered," then you’re balancing the free speech of one person with another’s right to be left alone—and the latter generally prevails.

So where is the line drawn?An employer starts running real risks if supervisors or employees are commenting on whether someone has been to church, or they’ve observed that someone doesn’t have a [religious] bumper sticker on his or her car, or things like that. They run the risk that if something adverse happens to that employee, the employee will claim he or she was discriminated against because he or she [wasn’t religious]. And the evidence of this [discrimination would be the] supervisor was commenting that he or she didn’t see the employee in church.

If there are risks (or) if the person works around equipment, the employer doesn't have to sacrifice safety to accommodate someone's religion.Tim Howlett, PartnerDickinson Wright

If you start going down that road, you’ll run into some potential problems when you’re disciplining or transferring an employee. So you can’t ban discussion of religion, but the safest place is to try to limit it—especially for supervisors—and to draw a line between discussion and harassment.

Do any of these rules change between public- and private-sector employers?There’s some difference in terms of religious organizations. If I’m running a Lutheran school, for example, I can decide I only want to hire Lutheran teachers. If the purpose of the school is partly this religious purpose, it doesn’t give me license to discriminate because of gender or age, but I do have some leeway in terms of religion.

That can get into kind of murky water, too, because some religious organizations have business entities in which religion really isn’t the purpose of the entity. That gets to be a grayer area on whether the organization can discriminate against somebody because of his or her religion, and it probably can’t. That’s a difference in the whole employment area that you just don’t run into with other protected classes.

Also, public institutions have to be more careful about their employees talking about religion because they’ve got to worry about whether they appear to be fostering a certain religion. If I’m running a warehouse and one of my workers starts trying to convert somebody, that’s probably not illegal, unless the person is harassing. But if I’m running a public-school system, a teacher doesn’t have those same rights. He or she can’t go up and try to convert the parents and kids that are coming in there.

How accommodating should an employer be when (handling) employees’ schedules around religious holidays?That’s an issue that will probably grow. In Michigan, there’s some legislation that has been proposed which says an employer can’t penalize an employee because the employee elects not to work on a holiday.

An employee has to give the employer at least a week’s advance notice, and the employer doesn’t have to pay the employee, but he or she has a right to have the holiday off. The EEOC has regulations in terms of accommodation on scheduling. It talks about different things an employer needs to try: voluntary substitutes or trades, flexible scheduling; those kinds of things at least need to be considered.

Again, it’s an accommodation issue, and the employer has to accommodate if it doesn’t cause an undue hardship.

How do you determine what is undue hardship?The general standard right now is the cost to the employer—when a religious accommodation would cost more than basic administrative costs.

If I’m running my business on Christmas and one person says, "I won’t work Christmas; I don’t believe in it and it’s against my religious beliefs," and it’s just [that one person], I think an employer will be hard pressed not to give that one person the day off. If 90 people come forward, then it becomes a different issue—you’re talking about basically having to close the business down.

Now those are extreme examples, and most cases are going to be kind of in the middle in terms of how far an employer has to go to accommodate.

What can an employer do when everyone asks for Christmas off?I suppose the employer can try to be a little creative with this situation. Maybe the employer can say, "Look, I’m only able to permit 20 people to take the day off. I’m willing to do it with a lottery or I’m willing to do it other ways." So the employer can’t be accused of not accommodating at all. The employer has done what it can up to the point of undue hardship and is just going to have to refuse to give some people the day off.

The Clinton administration offered guidelines addressing religion in the federal workplace—are any of them helpful to non-federal employees?They would, and if there were litigation, [an employer who followed them] could use that as evidence of a reasonable accommodation. The guidelines talk about accommodating work schedules and religious apparel, and suggest looking for less restrictive means to accomplish the employer’s purpose through voluntary substitutions, job reassignments and lateral transfers.

And the guidelines also talk about individuals’ religious rights vs. the employer’s interest in running an efficient business. Basically, the non-federal employee’s right to exercise his or her religion is balanced against two different things: the employer’s interest in efficient services and the intrusion on other employees.

Is there one area of these cases that tends to elicit litigation more than other areas?Scheduling cases show up most. The employer has employees who want time off because of their religion. That puts the employer in a tough spot. If my religion prevents me from working Saturdays, a lot of people are going to get upset that they have to work Saturdays, which is traditionally a family day. At some point, the other employees are going to start complaining. And then the employer’s caught in between. It comes back to accommodation and negotiation.